Virtual Influencers: Stretching the Boundaries of Intellectual Property Governing Digital Creations

• Author: Sonia M. Okolie
• Pages: 52-68

Published in Landslide® magazine, Volume 12, Number 3, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2019 by the American Bar Association. Reproduced with permission. All rights reserved.

This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Virtual Inf‌luencers

Stretching the Boundaries

of Intellectual Property

Governing Digital Creations

By Sonia M. Okolie

Image: GettyImages

Published in Landslide® magazine, Volume 12, Number 3, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2019 by the American Bar Association. Reproduced with permission. All rights reserved.

This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Virtual Inf‌luencers

T

he recent surge of social media has

given rise to inuencer marketing and

the ubiquity of social media inuenc-

ers (i.e., individuals thought to affect

others’ purchasing decisions via their

specialized knowledge and/or pre-

existing relationship with a relevant

audience).1 Depending on their fol-

lower count, content format, and social

media platform, a single inuencer

may command the attention of mil-

lions.2 Recently, however, some brands

have begun employing virtual inuenc-

ers—computer-generated personalities

designed to promote their products and

services.3 This new wave of inuencer marketing raises a host

of legal issues. This article will explore the mechanics, pur-

pose, and impact of virtual inuencers. It will then consider

right of publicity issues inherent in attempting to protect the

likeness of nonhuman characters in a virtual environment

and survey related copyright issues. This examination of the

world of virtual inuencers reveals there are ripe legal con-

siderations lying just below the surface.

What Is a Virtual Inuencer?

A virtual inuencer is a digital image “with a great mass of

social media followers that . . . [is] being used by brands to

do the work of what a human inuencer would do,” including

“attending fashion shows, shoot[ing] campaigns, mak[ing]

sponsored posts, etc.”4 These computer-generated characters

are being created by brands and being used to attract follow-

ers and sales. Virtual inuencers function much as traditional

social media inuencers do, with the added incentive of cus-

tomized marketing. After all, some have posited, “[w]hy hire

a celebrity, a supermodel or even a social media inuencer

to market your product when you can create the ideal brand

ambassador from scratch?”5 These avatars are instantly avail-

able, photo-ready, and, depending on their creators, may be

exclusively utilized by particular brands. This eliminates con-

cerns about brand ambassadorship competition, since some

virtual models are created for sole use by one company.

The earliest identied use of the virtual inuencer is

Miquela Sousa, or Lil Miquela, introduced to Instagram

in April 2016.6 The Brazilian-American digital model has

since amassed a follower count upwards of 1.8 million peo-

ple7 and has worked with companies such as Calvin Klein,

Dior, Prada, Tommy Hilger, and Samsung.8 She is also

portrayed as a musical artist, whose song “Not Mine” has

nearly two million plays on Spotify.9 The fast-food chain

KFC recently introduced a new iteration of Colonel Sand-

ers on social media, a virtual model.10 Gone is the elderly,

Southern gentleman of the old marketing campaign. In his

place stands a reimagined, rened Colonel Sanders with tat-

toos and six-pack abs. Lastly, consider Shudu Gram, the

world’s rst digital supermodel, who made her debut on Ins-

tagram in mid-2017.11 Shudu’s follower count rose “after the

managers of the Instagram for Rihanna’s Fenty Beauty line

apparently mistook her for a real customer.”12 Apparently, the

graphic design Shudu’s creator employs effectively portrays

an extremely realistic model.

Importantly, virtual inuencers are not quite articial intel-

ligence (AI). As discussed in this context, digital avatars are,

generally speaking, computer-generated images. However,

some “‘huge advancements’ in neural networks began allow-

ing computers to create ‘almost indistinguishable’ lifelike

models.”13 Some experts in the eld predict “a near future

where virtual creators require no human involvement what-

soever. Everything would be completely computer generated,

from the images they post to the captions that go along with

them. Machine learning technologies would then allow those

creators to interact with people on Instagram and Twitter.”14

Thus, although the technology being used for digital mod-

els is not associated with AI, algorithms and neural networks

may soon be used to elevate the virtual inuencer experience

to a whole new level.

The Benets and Drawbacks of Virtual Inuencers

Virtual inuencers may sometimes be more attractive to

brands than human inuencers or models. Virtual inu-

encers also come with less formal regulation than human

inuencers. The Federal Trade Commission (FTC) requires

inuencers to disclose when they are being paid to endorse

products or services on social media.15 However, it is unclear

if these guidelines apply to nonhuman inuencers as well.

The companies controlling virtual inuencers are not required

to disclose that they are purely digital and nonhuman. It is

interesting to consider what difference, if any, it would make

if brands were required to disclose that a particular model

being used in an advertisement were nonhuman or, simi-

larly, if virtual inuencers had to prominently display on their

social medial proles or even each social media post that they

are nonhuman. It may negatively impact consumer opinion if

this information were required to be disclosed, thereby lift-

ing the veil of mystery behind the virtual model’s perfectly

smooth façade and revealing a thorough plan to target and

ensnare unsuspecting consumers.

The FTC noted that it “hasn’t yet specically addressed

the use of virtual inuencers,” but brands using virtual inu-

encers should make sure that “any claims communicated

about the product are truthful, not misleading and substan-

tiated.”16 Therefore, the bare minimum required of a social

media post by a virtual inuencer is honesty regarding the

product or service being endorsed.17 The FTC does also

require endorsers to disclose connections to brands or com-

panies that may be material.18 Therefore, brands that not

only choose to employ virtual inuencers but also own and

create the inuencer’s posts are required to disclose that

they have that material connection. Otherwise, consumers

Sonia M. Okolie is a 3L law student at the George Washington

University Law School and a law clerk at Banner & Witcoff, Ltd.

in Washington, D.C. She assists in design patent and trademark

prosecution and enforcement. She can be reached at sokolie@

bannerwitcoff.com. The opinions contained in this article are hers

alone and do not necessarily represent the opinions of Banner &

Witcoff, Ltd. or its clients.